Don’t destroy water rights system

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RBC I A pair of ballot proposals, for which signatures are currently being collected, would ask voters to destroy Colorado’s 160 year old system of water rights, says a new issue paper published by Colorado’s free-market think tank, the Independence Institute.
Proposed ballot initiatives #3 and #45 would “essentially confiscate the water rights of cities, water districts, farmers and ranchers by making them subordinate to the whims of any Colorado citizen who complains to a court about their legal status,” says Craig Green, the Independence Institute’s senior fellow in water policy and author of the paper.
The Colorado Constitution has always recognized water as a public resource, but has also made it subject to claims for private uses. Under the Constitution, water rights can be claimed for beneficial purposes such as irrigation, domestic and city uses, among many others. Farmers and breweries can own water rights, as can cities.
But the two proposed initiatives would explicitly destroy property and contract rights in water. They would impose the so-called “Public Trust Doctrine,” which according to the proposals themselves makes government control of all water in Colorado “Superior to Rules and Terms of Contracts and Property Law.” This would be a complete reversal for water rights established under Colorado’s water rights system since 1852, long before the civil war.
“This poorly-conceived proposed takeover of Colorado water rights would be the most extreme confiscation of property in the state’s history,” says Green. “Colorado remains the only pure appropriation state in the U.S., a testament to the hard work of pioneers who developed and used valuable property, as well as those who came later. This long-standing exercise in private property rights development and protection is the cornerstone of a beneficial market-based system of natural resource allocation.”
As the paper describes, though the “public” owns post-statehood, unclaimed water resources according to the Constitution (but not pre-state or claimed rights), private property rights continue to be recognized, defended, bought and sold in active water markets all over the state. Farmers, ranchers, cities, water districts, conservation districts, and other water users, including the State of Colorado itself, all benefit from the ownership of property rights on the use of water. Today, even conservation interests like Trout Unlimited, Ducks Unlimited and the Colorado Division of Wildlife own and enjoy the benefits of private water rights protected by this system of water law.
“The current legal status and reliability of all these water rights would be destroyed by proposed ballot initiatives #3 and #45,” warns Green.
The paper, titled “Don’t Ask The State to Confiscate Water Rights” is available at
The Independence Institute is a non-partisan, non-profit public policy research organization based in Denver, Colo.